IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Cliff Sweet, :

Plaintiff : Civil Action 2:11-cv-01151

v. : Judge Marbley

Michael J. Astrue, Commissioner 

of Social Security, : Magistrate Judge Abel

Defendant

:

ORDER

This matter is before the Court on plaintiff Cliff Sweet's September 27, 2012

objections to Magistrate Judge Abel's September 24, 2012 Report and Recommendation. 

The Court, having reviewed the record de novo, determines that there is substantial

evidence supporting the administrative law judge's determination that plaintiff Cliff

Sweet is not disabled within the meaning of the Act. The Court further finds for the

reasons set out below that plaintiff's objections to the Report and Recommendation are

without merit.

Plaintiff argues that the administrative law judge's credibility analysis failed to

articulate the actual weight given to Sweet's testimony and lacked any detailed

explanation of the evidence relied upon to discredit plaintiff. Plaintiff maintains that the

administrative law judge's credibility assessment clearly falls short of the procedural

requirements of SSR 96-7p. 

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Plaintiff also argues that the Magistrate Judge erred when he found that plaintiff

was required to establish deficits in adaptative functioning as an adult. According to

plaintiff, Listing 12.05 only requires that plaintiff show maladaptive functioning that

began prior to the age of 22. Plaintiff demonstrated deficits in adaptative behavior in the

areas of motor skills, social communication, and community living skills based on his

Individualized Education Plan ("IEP") from his senior year of high school. The

Magistrate Judge noted that plaintiff's IQ scores improved over time and that he

graduated from high school, performed basic mathematics and worked semi-skilled

jobs. The Magistrate Judge acknowledged that the administrative law judge did not

articulate these factors in his decision, but any error was harmless. Plaintiff maintains

that the Magistrate Judge has violated the Sixth Circuit's established principles on the

law of harmless error. 

The administrative law judge properly considered whether plaintiff's allegations

concerning his limitations were credible:

The undersigned also considered the claimant's testimony but determined

that his reported limitations were generally more debilitating than

reflected in the objective record or in the opinion evidence. Specifically,

the undersigned asked the claimant whether he could do a light job that

allowed him to sit or stand at his own will, and the claimant responded he

could not because of leg numbness and issues relating to passing out and

black spots. However, there was little indication in the record that the

claimant had ongoing and persistent leg numbness or an indication that

even short amounts of standing would cause him to become dizzy and see

spots. Further, the claimant alleged significant limitations in sitting,

standing, and walking, but his own testimony indicated he could sit for

longer periods and that he could perform some activities of daily living.

The severities of the claimant's alleged knee, back, and leg numbness

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impairments were not reflected in the objective or opinion evidence

presented at hearing. Overall, the evidence supported the conclusions

found in the residual functional capacity above.

Doc. 9-2 at PageID #49.) The administrative law judge properly considered whether

plaintiff's allegations were supported by the medical evidence and were consistent with

his reported daily activities. 

Plaintiff’s objections with respect to the Magistrate Judge’s conclusion that

plaintiff failed to demonstrate that he met the diagnostic description in Listing 12.05 are

without merit. The Magistrate Judge correctly noted that there was no evidence

supporting a severe mental impairment. Plaintiff has not been diagnosed with mental

retardation by any treating source, and the most recent intelligence test scores placed

plaintiff in the borderline range of intellectual functioning. It is plaintiff’s burden to

establish that he satisfies all elements of a listing, and he has failed to do so. 

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation. Plaintiff's motion for summary

judgment is DENIED. Defendant's motion for summary judgment is GRANTED. The

decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to

enter JUDGMENT for defendant. This action is hereby DISMISSED.

 s/Algenon L. Marbley 

Algenon L. Marbley

United States District Judge

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